Balkinization  

Tuesday, January 16, 2007

An Audacious Claim About Our "Constitutional Culture"

Sandy Levinson

In today's Washington Post, David Rivkin and Lee Casey make the rather astonishing statement "that efforts by some congressional Democrats to chastise the president through a resolution of "no confidence" in his Iraq policy have no place in our constitutional culture." Readers of Balkinization are more than aware of my perhaps tiresome insistence that it is a severe defect in our constitutional system that there is no way of removing an incompetent (even if he/she is not a "criminal") president through a no-confidence vote. (Incidentally, there are 735 days remaining in George W. Bush's term, for those who are interested in the countdown.)

It would be impossible to take issue with Rivkin and Casey, described as Washington lawyers who worked in the Reagan and George HW Bush administrations, if they were saying simply that we are are indeed stuck with an incompetent in a way that we are not stuck, at least as a formal matter, with a criminal. (I would not, of course, expect them to agree with my assessment of George W. Bush, though these days one never knows what Republicans are saying to each other privately.) But their statement goes far beyond this truism about our system. They seem to be saying that Congress cannot even speak as a collective body and declare its loss of confidence in the leadership being shown by the Chief Executive/Commander in Chief.

I am not aware that there are limits on Congress's power to speak through passing resolutions that do not, after all, have the force of law. Indeed, I remember very vividly being in China in 1987 and trying to explain to justifiably confused Chinese scholars how it was that Congress could pass a resolution denouncing Chinese oppression in Tibet even as the official spokesman for the State Department explained that "the United States" viewed it as an internal matter of the People's Republic of China. I explained that it is simply a category mistake to view the US as having a unitary "government" in the way that Her Majesty has such a government. It may be the case that, when push comes to shove, the President is indeed "the Decider" (as to how to cast our vote in the UN, for instance), but this doesn't stop Congress from weighing in, for good or for ill, with its own views on matters of foreign policy. Thus I fail to see any serious argument against the propriety of Congress passing a resolution manifesting its loss of confidence in George W. Bush. To say that it has "no place in our constitutional culture" is just another power play by those who believe in an overweening Executive, and one might well believe that it is just such Executive supremacists who are trying to transform our constitutional culture moreso than members of Congress who are suggesting the relatively mild step of a resolution of no confidence.

Top State Department Lawyer Blogs About Guantanamo

Brian Tamanaha

The Legal Advisor to the State Department, John Bellinger, is guest blogging this week at Opinio Juris (the premier international law blog). Bellinger is articulating detailed legal justifications for the Bush Administration’s policies in connection with Guantanamo, torture, and related issues. To see some of the real world consequences of these policies, read this Washinton Post article about the many people still languishing in limbo at Guantanamo five years on.

Bellinger’s initial substantive post made this request of readers:
My purpose is not to persuade readers to agree with Administration policies. But I would ask readers to engage in serious legal analysis. If you question our approach, I would ask you to consider whether a different approach is actually legally required or simply preferable as a matter of policy.
This request seems reasonable enough, but it is a bit tricky. He sets it up so that opponents are placed in one of two categories: an alternative to the Bush Administration’s position must be “legally required,” or it is a policy preference (and therefore can be ignored). “Legally required” is an extremely high standard, one not easily met in domestic law, never mind in international law. But there are other standards, for example: legally persuasive (supported by compelling legal arguments), or legally authoritative (consistent with rulings by international tribunals), or consistent with the legal interpretation shared by most of the rest of the world. A major problem with the Bush Administration’s positions on some of the critical issues is that they run afoul of these other standards, standards which many international observers consider appropriate.

Bellinger, of course, does not hold the Bush Administration to the same high standard that he applies to opponents, or even to the lower alternative standards that I suggest. As long as the Administration's position is “arguable,” that appears to be good enough.

Consider, for example, Bellinger’s earlier observations about Article 75 of the Geneva Protocol, which the US has heretofore consistently maintained is binding under customary international law:
“Article 75 of Geneva Protocol I does set a generally minimum standard for people who do not benefit from other provisions of the Geneva Convention, and the U.S. has historically said that we think that is customary international law. We are looking at whether we think it is customary international law in this kind of a conflict. There is certainly a good argument that it is, always. But when it comes to customary international law, it is in things that you are customarily dealing with, and people have not had to customarily deal with armies of terrorists where the entire force of the army, not just a few people but the entire force of the army, is in fact intent not on fighting our armed forces, where sometimes guerrillas who have been contemplated by Geneva Protocol I…, but where the entire army of al-Qaeda is in fact intent on combating our civilians.

“So while you make a reasonable point, we have said that that’s customary international law in the past, we are looking at whether that’s appropriate, and we haven’t said that it isn’t, but we have not yet said that it is, because this really is in that regard -- dealing with people whose whole aim in life is to kill civilians -- is sort of a different situation.”


I guess Bellinger's explanation for why a provision we have previously (repeatedly) said is binding might not be binding on us in this situation is arguable (which is not to say that it is convincing), though it is telling that his words are hedged and twisted into a pretzel.

In another interview, Bellinger made the following statements about torture:
State Department legal adviser John Bellinger said the US welcomed the dialogue and would try to answer the committee's [the Committee Against Torture, in Geneva, May 2006] questions.

But he said incidents of abuse were "not systemic" and urged the panel "not to believe every allegation that you've heard".

"Allegations about US military or intelligence activities have become so hyperbolic as to be absurd," he said.

US Deputy Assistant Secretary of Defense Charles Stimson said 120 detainees had died in Iraq and Afghanistan, 29 of whom might have been abused.

He said suspected cases were investigated and "appropriate action taken”.
It’s not clear how to interpret Bellinger’s denials. Various reports have indicated that prisoners in US custody have been subjected to stress positions (many hours standing in restraints), held in cold conditions and doused with cold water, and subjected to waterboarding. Is Bellinger denying that any of this took place (and how does he know?)? Or is he saying that this treatment does not constitute “abuse” or “torture” (which the Bush Administration has suggested implausibly in the past)? [Stimson, by the way, made national news in the past few days by attempting to intimidate the corporate lawyers who defend Guantanamo prisoners, which says a lot about his believability. And how many of those deaths have resulted in prosecution?]

If we are indeed fighting a new kind of war—the so-called “Global War on Terror”—it is essential that the US obtains international support in this effort. Right now we suffer from a lack of credibility.

Bellinger’s willingness to appear on a blog to articulate and defend the Bush Administration’s position on these issues is admirable. No doubt he will have an audience of international lawyers and government officials. Let’s hope one of his primary objectives is to rebuild US credibility. For that to happen, his legal justifications must be more than arguable, they must be legally persuasive and factually credible.

Check out his posts.

World Historical Incompetents

JB

There is an amusing discussion over at Crooked Timber, based in turn on an article in Inside Higher Education by Scott McLemee, over whether George W. Bush should be considered a World Historical Individual in the Hegelian sense.

I think this discussion admirably shows the limitations of Hegel's theory of history as much as the limitations of George W. Bush.

I have a much more modest suggestion, or rather two suggestions. One concerns the effects of the lethal combination of great incompetence and great power; the other concerns the role of contingency in history (as opposed to Hegel's notion of the inevitable working out of the Idea in history).

The paradigm cases of Hegel's world historical individuals are people like Caesar, Napoleon, Alexander, or in our day, people like Mao or Stalin, who through force of will reshape history and then are destroyed by its forces. George Bush does not seem to fall into this camp. He seems, rather, to be among those many leaders who were simply over-matched by the situation they found themselves in, and squandered the great power they held at a moment in history to the long lasting detriment of their country and the interests they stood for. Bush is like the impetuous but ignorant monarch or tribal chieftain-- there are so many of them-- who attacks the wrong country at the wrong time, and whose empire is then weakened or, in some cases, destroyed. He is among history's losers, who drags his country down with him, and these losers are not world historical individuals. If the catastrophe they engender by their incompetence and bad judgment is really significant-- take the destruction of the world order produced by World War I as only one example-- then they are world historical losers. But no one should or would confuse the last monarchs of, say, Austria and Russia with world historical individuals.

Instead, I would call such leaders world historical incompetents-- people who, put in the wrong place at the wrong time, with skills unable to the task, manage to destroy a great deal that was once thought valuable or good, and thus, unwittingly, change the world in ways they had no intention of doing.

Whether George W. Bush is such a world historical incompetent, only time will tell. But right now it looks like he is doing everything he can to qualify.

My second point concerns contingency in history, a familiar theme. Just yesterday Al Gore announced that he was not going to run for President in 2008. I am sad to hear it, but I am even sadder that he was not permitted to enter the White House in 2000, even though he won more votes than George W. Bush, and in my opinion, won more votes in Florida as well. I have discussed these issues at great length elsewhere and won't repeat the reasons for my conclusions here.

In hindsight, however, it seems to me clear that the United States would very likely have been better off if Al Gore had taken office in 2000 rather than George W. Bush. He might have proved incompetent, but it is hard to believe that, given his experience in government and in foreign policy, he could have been much more incompetent than the stubborn and inexperienced George W. Bush. There is hardly any doubt, moreover, that he would not have attacked Iraq following the terrorist attacks on September 11th, if those attacks would have occurred on his watch. (Remember that both officials in the Clinton and Bush administrations could be charged with negligence here.) Moreover, if Gore had proved bad at the job, he might have served only one term, especially since, unlike Bush, he would have gotten little cooperation from Congress, which was of a different party and would have been doing everything it could to undermine him.

How did Bush become president in 2000? Part of it is due to superior skullduggery on behalf of the Republicans, and part of it is due to Gore's inability to win Tennessee, his home state, the limitations of his campaign, and his unwillingness to send Bill Clinton out to campaign for him until the very last moment. Part of it was due to Teresa La Pore's design of the butterfly ballot. In short, the catastrophe of the Bush Administration was caused by a host of contingencies that no one could have predicted, but which, in hindsight, put an ill-prepared, stubborn and ignorant man in the most powerful position in the world, and he, true to his nature, proceeded to screw things up royally.

Had George W. Bush stayed as governor of Texas, or commissioner of Baseball-- the job he really coveted, or even a gladhanding Texas businessman-- which he was for many years, he might have had much less chance to destroy anything so great. His incompetence would not have been so magnified, and the country would not have had to pay so great a price. But sometimes, by bad chance or dumb luck, the wrong person at the wrong time with the wrong set of skills is handed enormous power, that if, badly wielded, will change the world forever in ways no one desired. Then the world witnesses something that is as unfortunate as it is unnecessary: a World Historical Incompetent.

Monday, January 15, 2007

John Roberts and an "Institutionalist" Court

Sandy Levinson

I will celebrate Martin Luther King Day by taking the day off from Bush-bashing (not that he doesn't deserve it, of course). Instead, I will devote this posting to a remarkable interview, published under the title "Roberts's Rules," in the current Atlantic Monthly. Although written by Jeff Rosen, a friend whom I much admire, the article is best described as a relatively unfiltered channelling of Roberts's views. This may simply be a way of saying that I see no good reason to be so admiring of Roberts as Jeff seemingly is. Perhaps this is because I've never met the man and thus have not been subjected to what most people who have proclaim is a very charming personality. I find Roberts's views in many ways perplexing, for reasons I will spell out.

It is clear that Roberts, like Rosen, is a great admirer of John Marshall. What he most admires is Marshall's ability to suppress the expression of independent thinking, also known as concurrences or dissents. "If the Court in Marshall's era had issued decisions in important cases the way this Court has over the past thirty years [i.e., where there have been lots of concurrences and dissents], we would not have a Supreme Court today of the sort that we have. This suggests that what the Court's been doing over the past thirty years has been eroding, to some extent, the capital that Marshall built up. I think the Court is also ripe for a similar refocus on functioning as an institution, because if it doesn't it's going to lose its credibilty and legitimacy as an institution."

As a sometime political scientist, I'd be curious to know on what Roberts is basing his theory of "credibility and legitimacy." Most studies seem to suggest that the public responds fairly directly to those very few Supreme Court decisions they know anything about on the basis of whether they agree with the result. The systematic unanimity of the Supreme Court following Brown seems to have had no affect, for example, on segregationist willingness to accept even the smidgen of desegregation (one cannot possibly call it "integration") in, say, Little Rock. But it's hard to escape the common-sense view that, overall, unanimous decisions are probably better than split ones from the perspective of the Court's appearing a "court of law" instead of "a court of men and women with quite different views on what the Constitution means.

Rosen writes, "In particular, Roberts declared, he would make it his priorty, as Marshall did, to discourage his colleagues from issuing separate opinions." Thus, said Roberts, "I think that every justice should be worried about the Court acting as a Court and functioning as a Court, and they should all be worried, when they're writing separately, about the effect on the Court as institution." Again, as a political scientist and student of Robert McCloskey, I am quite happy with the veiw that judges, as a descriptive matter, are concerned with protecting the institutional interest of the Court. But note well, this protection may come at the price of what can be described as the intellectual integrity of the given justices who are being discouraged to suppress their "Herculean view" (to use Dworkin's terminology) as to what the law "really" requires in favor of submitting to (the Chief Justice's?) view of what best serves the Court's institutional interest.

It's an interesting exercise to try to figure out how this institutionalist view accords with his "umpire view" that he so notably tried to sell to the Senate Judiciary Committee at his confirmation hearings. Umpires, presumably, are not supposed to be instrumentalists, concerned with the consequences of a given call for a given game, a pennant race, or even the overall "good of preserving the good repute of umpires," unless that is simply another way of saying that good repute means undeviating fidelity to honesty. But Roberts here is defending a quite instrumentalist conception of the judge that requires at least some deviation from unflinching devotion to "calling them as you see them, which also happens to be as you think they are." It begins by suggesting that it is perfectly proper for a judge, who after all has taken an oath of office to defend the Constitution--and not "the institutional interests of the Supreme Court"--to sign opinions that he/she doesn't agree with. It is obviously the case that many judges, including those we regard as "great," have done so; it is indeed required by the very idea of a court that has repudiated seriatim opinions, one of Marshall's most important achievements. But isn't there also something a bit dicey about the notion, at least for those who take "legal fidelity" with utmost seriousness? At the very least, wouldn't it have been desirable for Roberts, at the hearings, to complement his "umpire view" with his institutionalist view and address some possible tensions between them?

Rosen invites us to envision Roberts trying to encourage Scalia and Thomas to shut up, especially where they agree with the majority outcome but not its rationale. I would love to sit in on that ocnversation. But he would presumably be even more inclined to hope that they would shut up when they are in dissent (except, perhaps, when he would be joining them). But such submission would have deprived us, among other things, both of Scalia's genuinely eloquent dissent in Hamdi (which I agreed with) and Thomas's equally important dissent in the same case (that appalled me, but, as I have discovered when teaching it, sets out the underlying issues with tremendous clarity that has convinced a lot of students). Would the country really have been better off with such suppressions, in favor of the mush written by the O'Connor plurality in that case?

"Roberts praised," writes Rosen, "justices who were willing to put the good of the Court over their own ideological agendas." But is this the way that the justices themselves describe themselves? I.e., how many of them, beginning with Roberts, have been willing to testify under oath, or, for that matter, elsewhere, that they have "ideological agendas"? Political scientists may believe that they indeed do, but I dare say that most justices, quite probably sincerely, describe themselves as being motivated by a duty to be faithful to the Constitution. Antonin Scalia sees a different Constitution than does John Paul Stevens, but that simply says that the Constitution is capable of being interpreted in different ways, not that Scalia (or Stevens) has an "ideological agenda" that the other does not. Then Roberts is quoted as saying, "A justice is not like a law professor, who might say, 'This is my theory . . . and this is what I'm going to be faithful to and consistent with,' and in twenty years will look back and say, 'I had a consistent theory of the First Amendment as applied to a particular area.'" Instead, "it would be good to have a commitment on the part of the Court to acting as a Court rather than being more concerned about the consistency and coherency of an individual judicial record."

So on what basis would Roberts have judtges in conference cast theiry votes? It's apparently not in terms of a "theory." One gathers that Roberts is a fan of Emerson and is rather cavalier about consistency. Judges are not law professors, after all. I'm happy to accept the notion that justices are indeed not law professors, but, then, what exactly does constitute the difference between a Justice and a legislator if not some believed commitment to the Constitution? Do we have any real idea what Roberts believes the Constitution to be beyond preserving the institutional power of the Court?

He suggested at his confirmation that he's a fan of precedent and narrow decisionmaking. But how does this fit with the early predictions by such experienced court-watchers as Linda Greenhouse and Joan Biskupic following the oral argument in the Seattle and Louisville cases, that Roberts (and Alito, let's not forget him) are raring to overturn decades of precedent and adopt, for the first time, a hard-core "colorblind" notion of the Fourteenth Amendment, at least where race is concerned?

Incidentally, would a "restrained" and "minimalist" Court have taken those cases in the first place? There was, after all, no conflict in the circuits, and it apparnetly took no fewer than seven conference sessions before the Court granted cert. Does anyone seriously believe that it was the "moderate four" who were raring to hear those cases? Was Roberts such a weak new CJ that he couldn't persuade even one of his conservative colleagues to wait? Or did he in fact support the grant, and will he in fact write a 5-4 opinion that will turn American public education upside down and lead to far more racial segregation even than now exists? (And, of course, will he vote, also in -4 decisions, to get rid of racial preferences not only at elite law schools, but also, and far more seriously, at the various US military academies?)

Roberts also indicated that he is unhappy with charts, as in the New York Times, Atlantic, and Harvard Law Review, among others, indicating judicial pairings and blocs. 'It is such an egotistical analysis of the Court.... I think it's bad, long-term, if people identify the rule of law with how individual justices vote." Well, there's a good institutionalist response to this problem: Follow the practice of the European Court of Justice and simply forbid any concurrences and dissents at all. The Irish Supreme Court follows a similar practice, as does, I believe, the Greek Constitutionial Court. Or, somewhat more moderately, simply issue all majority opinions as per curia, in the name of the institutional Court, so that we no longer identify a particular opinion as written by Chief Justice Roberts or anybody else. We could even have "anonymous" concurrences and dissents. So, if my call for a new constitutional convention is ever heeded and if Chief Justice Roberts is called upon to offer suggestions, what's wrong with these? As a matter of fact, I think there's a lot wrong, but I'd be interested in knowing whether Roberts agrees.

Roberts has apparently been reading some business motivation books, for he talks about the importance of "team dynamic." "You do have to [help people] appreciate, from their own point of view, having the Court acquire more legitimacy, credibility; [show them] that they will benefit, from the shared commitment to unanimity, in a way that they wouldn't otherwise. You do need some fluidity in the middle, if you are going] to develop a commitment to a different way of deciding things." Since many readers, including myself, might find this a perplexing notion, Rosen provides his own gloss: "In other words, on a divided Court where neither camp can be confident that it will win in the most controversial cases, both sides have an incentive to work toward unanimity, to achieve a kind of bilateral disarmament."

As it happens, David Law and I have published an article, in the Richmond Law Review, explaining "Why Nuclear Disarmament May be Easier to Achieve than an End to Partisan Conflict over Judicial Appointments ." The analysis certainly holds as well for "disarming" the two camps on the current SupremeCourt. The problem is twofold: Who is empowered to "negotiate" the treaty; and then how is compliance to be enforced, given the temptations to defect? But for starters, we should try to figure out what Roberts (or Rosen) can possibly mean by "work[ing] toward unanimity." Presumably, he's not suggesting--or is he?--that justices should agree not to vote to grant cert unless it appears (when, and how, since HW Perry suggests that almost no serious discussion goes on with regard to most cert grants?) that the outcome will be unanimous. So let's assume that cert has been granted and oral argument heard. At the time of the conference, it's obvious who wins and who loses. What incentive do the winners have to make substantial concessions to the losers, especially if the winners do indeed believe that "the Constitution" compels their result (whether it's a "color-blind Constitution" or giving genuine due process to detainees)? And when should the losers be "good sports" and sign opinions that they in fact believe to deviate from the proper understanding of the Constitution and reach results that are not supported by any sound constitutional analysis?

Apparently, Roberts is going to use his assignment power, as Chief Justice, to prefer those who are "committed to broad consensus" rather than law-professor type ideologues. So does this mean that Scalia and Thomas will get no important opinions to write in the coming term? Will Roberts, like Marshall, start hogging the show as a means of disciplining his colleagues?

George Bush has "only" 736 days remaining in office. John Roberts may have upwards of 11,000 days remaining, should he serve for 30 more years. As readers of my book know, I believe that life tenure is every bit as indefensible as is the locked-in fixed-term presidency. In the nature of the case, no Chief Justice can possibly threaten us the way an incompetent President can, but it's still no small matter that he might remain on the Court in 2037. In any event, do we really have any firm basis for believing what kind of Chief Justice John Roberts will turn out to be, and do we like what we've seen so far (including the Rosen interview)?

Statement of Law Deans Concerning Stimson Remarks

Guest Blogger

Harold Koh

January 15, 2007

Statement of Law Deans*

To the Editor:

We, the undersigned law deans, are appalled by the January 11, 2007 statement of Deputy Assistant Secretary of Defense Charles “Cully” Stimson, criticizing law firms for their pro bono representation of suspected terrorist detainees and encouraging corporate executives to force these law firms to choose between their pro bono and paying clients.

As law deans and professors, we find Secretary Stimson’s statement to be contrary to basic tenets of American law. We teach our students that lawyers have a professional obligation to ensure that even the most despised and unpopular individuals and groups receive zealous and effective legal representation. Our American legal tradition has honored lawyers who, despite their personal beliefs, have zealously represented mass murderers, suspected terrorists, and Nazi marchers. At this moment in time, when our courts have endorsed the right of the Guantanamo detainees to be heard in courts of law, it is critical that qualified lawyers provide effective representation to these individuals. By doing so, these lawyers protect not only the rights of the detainees, but also our shared constitutional principles. In a free and democratic society, government officials should not encourage intimidation of or retaliation against lawyers who are fulfilling their pro bono obligations.

We urge the Administration promptly and unequivocally to repudiate Secretary Stimson’s remarks.

Sincerely,

William E. Adams, Jr.
Acting Dean, Shepard Broad Law Center
Nova Southeastern University

James J. Alfini
President and Dean
South Texas College of Law

Michelle J. Anderson
Dean and Professor of Law
CUNY School of Law

Katharine T. Bartlett
Dean, Duke University School of Law

Louis D. Bilionis
Dean, University of Cincinnati College of Law

Terence L. Blackburn
Dean and Professor of Law
Michigan State University College of Law

Jeffrey S. Brand
Dean, University of San Francisco School of Law

Brian Bromberger
Dean, School of Law
Loyola University at New Orleans

Don Burnett
Dean, University of Idaho College of Law

Robert Butkin
Dean and Professor of Law
The University of Tulsa College of Law

Evan H. Caminker
Dean, University of Michigan Law School

Jim Chen
Dean and Professor of Law
Louis D. Brandeis School of Law
University of Louisville

Neil H. Cogan
Vice President and Dean
Whittier Law School

Jay Conison
Dean, Valparaiso University School of Law

Kenneth B. Davis, Jr.
Dean, University of Wisconsin Law School

Stuart L. Deutsch
Dean and Professor of Law
Rutgers School of Law-Newark

Allen K. Easley
President & Dean
William Mitchell College of Law

Michael Fitts
Dean, University of Pennsylvania School of Law

Stephen J. Friedman
Dean and Professor of Law
Pace University School of Law

John Garvey
Dean, Boston College Law School

Arthur R. Gaudio
Dean and Professor of Law
Western New England College School of Law

Jon M. Garon
Dean, Hamline University School of Law

Peter Goplerud
Dean, Florida Coastal School of Law

Mark Gordon,
Dean, University of Detroit Mercy School of Law

Jack A. Guttenberg
Dean & Professor of Law
Capital University Law School

Lawrence K. Hellman
Dean and Professor of Law
Oklahoma City University School of Law

Patrick E. Hobbs
Dean, Seton Hall University School of Law

Gilbert A. Holmes
Dean and Professor of Law
University of Baltimore School of Law

John C. Jeffries, Jr.
Dean, University of Virginia School of Law

Carolyn Jones
Dean, University of Iowa College of Law

Elena Kagan
Dean, Harvard Law School

Harold Hongju Koh
Dean, Yale Law School

Larry Kramer
Richard E. Lang Professor and Dean
Stanford Law School

Frederick M. Lawrence
Dean and Robert Kramer Research Professor of Law
The George Washington University Law School

Paul LeBel
Dean & Professor of Law
University of North Dakota School of Law

David A. Logan
Dean and Professor of Law
Ralph R. Papitto School of Law
Roger Williams University

Lydia Pallas Loren
Interim Dean and Professor of Law
Lewis & Clark Law School

Philip J. McConnaughay
Penn State University
The Dickinson School of Law

Susanah M. Mead
Interim Dean and Professor of Law
Indiana University School of Law - Indianapolis

Cynthia Nance
Dean and Professor of Law
University of Arkansas School of Law--Fayetteville

Charles I. Nelson
Dean and Professor of Law
Faulkner University

Nell Jessup Newton
Dean, UC Hastings College of Law

Margie Paris
Dean, University of Oregon School of Law

Elizabeth Rindskopf Parker
Dean
University of the Pacific
McGeorge School of Law

David F. Partlett
Dean and Asa Griggs Candler Professor of Law
Emory University School of Law

Rex R. Perschbacher
Dean and Professor of Law
University of California at Davis School of Law

Peter Pitegoff
Dean, University of Maine School of Law

Lawrence Ponoroff
Dean and Mitchell Franklin
Professor of Private & Commercial Law
Tulane University Law School

Lawrence Raful
Dean and Professor of Legal Ethics
Touro College Jacob D. Fuchsberg Law Center

Douglas E. Ray
Dean and Professor of Law
The University of Toledo College of Law

Robert Reinstein
Dean, Temple University Beasley School of Law

Richard Revesz
Dean, New York University School of Law

Lauren Robel
Dean, Indiana University School of Law--Bloomington

Nancy H. Rogers,
Dean, The Ohio State University Moritz College of Law

Karen H. Rothenberg
Dean & Marjorie Cook Professor of Law
University of Maryland School of Law

Edward Rubin
Dean and Professor of Law
Vanderbilt University Law School

Lawrence G. Sager
Dean, School of Law. University of Texas at Austin

Mark Sargent
Dean, Villanova University School of Law

Brad Saxton
Dean and Professor of Law, Quinnipiac University School of Law

Michael Schill
Dean, UCLA School of Law

Geoffrey B. Shields
President and Dean and Professor of Law
Vermont Law School

Gary J. Simson
Dean, Case Western Reserve University School of Law

Rodney A. Smolla
Dean, University of Richmond School of Law

Aviam Soifer
Dean, William S. Richardson School of Law, University of Hawai'i

Rayman L. Solomon
Dean, Rutgers University School of Law - Camden

Kurt A. Strasser
Interim Dean, University of Connecticut School of Law

Leonard P. Strickman
Dean, Florida International University
College of Law

Symeon C. Symeonides
Dean, Willamette University College of Law

Emily A. Spieler
Dean, Northeastern University School of Law

Ellen Y. Suni
Dean and Marvin Lewis Rich Faculty Scholar and Professor of Law
University of Missouri-Kansas City (UMKC) School of Law

Kellye Y. Testy
Dean and Professor of Law
Seattle University School of Law

Patricia D. White
Dean and Professor of Law
Sandra Day O'Connor College of Law
Arizona State University

Steven L. Willborn
Dean & Schmoker Professor of Law
University of Nebraska College of Law

Frank H. Wu
Dean, Wayne State University Law School

David Yellen
Dean and Professor
Loyola University Chicago School of Law

___________________________________

* For a complete listing of signatories, see http://www.law.yale.edu/news/4055.htm. Law School affiliations are provided for identification purposes only.

UPDATE: As of January 17, over 151 persons have signed the letter.

Tales From The National Surveillance State: Domestic Surveillance by the Pentagon and the CIA

JB

The Mew York Times reports that the Pentagon and the CIA have been using "noncompulsory" versions of national security letters to obtain financial records on Americans and American companies. Unlike traditional search warrants, national security letters do not require examination by a neutral independent magistrate to determine whether the request is reasonable and/or supported by probable cause. Instead, the agency which issues the letter decides for itself whether the request is reasonable.

The practice of national security letters by the Pentagon and the CIA is not new but the amount and scope has greatly accelerated under the Bush Administration; former Defense Secretary Donald Rumsfeld sought to greatly expand the military's intelligence gathering powers following the 9/11 attacks and therefore pushed for aggressive readings of existing law to enable the military to investigate more and more domestic activities, even though both the military and the CIA are generally banned from domestic surveillance.

The temptation for the Pentagon and the CIA to push the envelope on domestic surveillance is entirely understandable, even if it is legally dubious and creates enormous dangers for civil liberties. The National Surveillance State arises because of the changing demands of and possibilities for governance in an age that features both increased possibilities of terrorism moving across national borders and more powerful methods of electronic surveillance. Although by law the CIA and the Pentagon are supposed to deal only with "outside" threats to the country, it is increasingly difficult to decide what is "inside" and what is "outside" the United States, and what is a question of domestic law enforcement and what is a question of military defense.

As I have explained previously, the National Surveillance State tends to produce a second, parallel track that routes around the traditional criminal justice system with its checks and balances that are designed to limit executive overreach and arbitrariness. In this parallel track of investigation, apprehension, detention, and punishment, the Bill of Rights does not apply. Indeed, precisely for this reason the temptation to use and to augment this parallel track becomes irresistible for government servants; their primary mission is to protect the country from harm, and predictably, they seek to eliminate any unnecessary impediments to fulfilling their mission.

Thus, over time, the military and the CIA, faced with an increasing urgency to deal with developing threats that cross national boundaries, will push the envelope on their existing powers, expanding what were previously marginal practices, using them more extensively, and making them far more common. As they expand the parallel track, they recreate the very dangers to personal freedom that led to the checks and balances characteristic of the primary track of traditional law enforcement.

Indeed, not only is there pressure to expand the parallel track, there is pressure to "reform" the traditional track-- with its multiple checks on executive overreaching-- to allow it to harness the information obtainable in the parallel track. Thus, at the same time the CIA and the Pentagon have been breaching the boundary between foreign and domestic surveillance, the Federal government-- through the Patriot Act and other changes in practice-- has beefed up the use of national security letters (which do not require prior judicial review) and expanded the scope of executive surveillance over persons in the United States (the NSA domestic surveillance program being one obvious example). Moreover, the government has argued that the fruits of this surveillance, like the fruits of any other legal surveillance, should be admissible in the ordinary criminal justice system.

We should not assume that a change of administrations will cure these tendencies; they are the result of larger forces and systemic pressures. Our task is to find new ways to guard against the guardians of our security in the electronic age.


Sunday, January 14, 2007

Baghdad and New Orleans

Sandy Levinson

Tomorrow's NYTimes includes a column by Bob Herbert, which includes the following:


What is actually happening is worse than anyone had imagined.

New Orleans is a mess. It was brought to its knees by Katrina, and is being kept here by a toxic combination of federal neglect and colossal, mind-numbing ineptitude at the local level.

The police department here is a sour joke, and crime is out of control. More than 16 months after the storm, children roam the streets with impunity during school hours. Debris still covers much of the city. Doctors, hospitals and mental-health facilities are in woefully short supply. Thousands of residents are still living in trailers, and many thousands more are stuck more or less permanently out of town.

The result is that blacks and whites, feeling unsafe physically and frightened by the long-term prospect of dwindling opportunities, are eyeing the exits.



So the obvious question is this: If the US (and Louisiana) cannot establish any working government/civil society in New Orleans sufficient to allow credible claims of progress, why would any sane person believe that the situation would be better, at least over the next, say, six-nine months, in Baghdad? Is there any reason to believe that the present Iraqi "government" is any more competent than the governments of Louisiana and New Orleans (I put the national US government to one side)? Are the Iraqis less corrupt, less caught up in the most pernicious forms of ethnic hostility, etc.? And, perhaps most to the point, what responsibiliteis does the US have to give entry visas to undoubtedly brave Iraqis who have in fact risked their lives over the last months or years to try to assist the US? Don't we in fact have an obligation to make sure that what happened in the last days in Vietnam does not happen in Iraq?

Tyler Too?

Mark Graber

During the Jacksonian Era, Whigs in the Senate first censured President Andrew Jackson for removing the deposits from the national bank and then made an abortive effort to impeach President John Tyler for exercising the veto power too aggressively. Henry Clay’s speech on the censure resolution strongly hinted that had Whigs controlled the House of Representatives, the censure resolution would have been an impeachment. The Republican effort to impeach President Andrew Johnson was based almost entirely on policy differences, and policy differences played crucial roles in both the Nixon and Clinton impeachments. The first federal judge to be impeached, John Pickering of New Hampshire, was almost certainly impeached as much for incompetence (he was a habitual drunk and senile) as for malfeasance.

One question this practice raises is whether, in fact, impeachment for maladministration or policy differences de facto exists in the United States. Given that Daniel Webster in response to Andrew Jackson’s bank veto in 1832 raised no objection to presidential vetoes on policy grounds, no good reason exists for taking seriously Whig claims in 1843 that Tyler was guilty of high crimes and misdemeanors for doing the same thing. Whigs drummed Tyler out of the party because he fought against their cherished American system. Had they the votes, Tyler would have been impeached. The interesting question presently raised by the abortive Tyler impeachment is the extent to which that incident casts light on contemporary politics. That Republicans are not actively seeking to remove President Bush or drumming him from the party may suggest that they are more invested in the Bush presidency or in maintaining Bush’s core supporters than Whigs were invested in the Tyler Presidency or in maintaining Tyler’s core supporters. Alternatively, one might read the abortive Tyler impeachment and the expunged censure resolution as creating a constitutional precedent that an impeachment must ostensibly be based on a consensual high crime and misdemeanor. Just as Keith Whittington in Constitutional Construction (another must read) has pointed out how the failed Chase impeachment in 1803 came to stand for the proposition that justices cannot be impeached solely for taking constitutionally controversial positions, politicians by the mid-nineteenth century may have regarded the abortive Tyler impeachment as establishing that presidents should not be impeached solely for political disagreements with Congress.

I suspect a bit of both are true. Over time a minor constitutional consensus does seem to have developed that the censure resolution and abortive Tyler impeachment were unconstitutional (the consensus is minor because the incidents are not well known outside of the academy and because the consensus is not strong). Still, politicians who feel their electoral interests are best served by impeachment find reason to impeach. I do confess to thinking that the latter better explains Republican support of Bush. Whigs could drum Tyler out of the party because, by 1843, no Whig constituency had any interest in supporting the Tyler presidency. By comparison, Bush’s 32% approval rating means, in effect, that he is supported by more than half the Republican party, support that may make impeachment or a vote of no confidence too poltiically costly for most Republicans. Curiously, I think Jacksonians might have supported a Tyler impeachment had the result been a special election rather than replacement by, say, Henry Clay or a more orthodox Whig. This may suggest that while a president removed for high crimes and misdemeanors ought to be replaced by the vice president, a new election ought to follow the removal of a president for maladministration or policy differences.

The United States and the United Nation

Sandy Levinson

Assume for the purposes of this posting that you, the reader, actually care about preserving the United Nations as an effective forum of international discussion and, on occasion, decisionmaking with regard to a variety of important issues. (If you hate the UN, as does John Bolton, then you won't find what follows of particular relevance.)

So, if you are willing to grant the assumption, isn't it obvious that anyone concerned about the UN must confront the ways that it is ill designed to achieve its quite inspiring purposes as set out in 1945? The most obvious example is the design of the Security Council and the current veto system, which is based entirely on "great power status" as measured in 1945: US, USSR, UK, France, and China. One doesn't have to be a Francophobe to wonder why France retains the veto power in 2007 (assuming the desirability of a veto power at all). One might even ask the same question about the UK, if truth be known. It's easy enough to defend the US, Russia, and China as veto-holders, but, obviously, one can name a number of other countries that might also qualify, especially if one doesn't strip the UK or France of its power: Germany, Japan, India, Brazil, for starters. We could also talk about the one-state/one vote system in the General Assembly. For someone who is critical of the US Senate and its maldistribution of voting power, it is hard indeed to figure out why one would support Fiji's having the same voting power as the United States or China, unless one is what might be termed a "sovereign state formalist" totally indifferent to the realities of population, resources, etc., etc., etc. Frankly, I see no more reason to support that at an international level than at the more local level of the US, though, no doubt, some of you would argue that there is a dispositive difference. I'd be genuinely interested to read such arguments.

In any event, the point is obvious: No one would consider it amiss to suggest that the UN should be subject to rational assessment with regard to its basic design, and one could be acknowledged as a "friend" of the UN even while calling for quite significant revisions of the 1945 Charter. So why is it that "we" (in this case the US populace or even what political scientists used to call "attentive publics," and not simply the readers of Balkinization) are having no serious discussion about the deficiencies in our own Constitution? Is it simply that we "venerate" the latter, while no one "venerates" the UN Charter? Is it that most people are so scared of popular democracy in the US that we prefer the devil we know (but never actually admit has devilish features) to what we fear might eventuate from a serious open discussion?

Oh, and by the way, George W. Bush, if he does not choose to leave the White House, will have 737 more days to enjoy all of the legal power granted the President of the United States. I confess that I am increasingly frustrated by the failure of any mainstream pundit, many of whom are as easily anti-Bush as I am, to note the constitutional origins of our present political crisis. Everything is reduced to pure politics, especially the runup to the 2008 election, with no attention being paid to the way that the Constitution indeed successfully structures our political order, for goood (at times) and, most definitely, for ill (at other times). There are many critics of the tendency of the press to turn all politics into "horseraces," with the main issue being who is ahead and who is coming up on the outside rail. But even horseraces are constituted by some very definite rules that structure possible outcomes.

Sleeping Through a Revolution

Scott Horton

"I am sure that most of you have read that arresting little story from the pen of Washington Irving, entitled 'Rip Van Winkle.' The one thing that we usually remember about the story is that Rip Van Winkle slept twenty years. But there is another point... that is almost completely overlooked. It was the sign in the end, from which Rip went up in to the mountain for his long sleep. When Rip Van Winkle went up into the mountain, the sign has a picture of King George III of England. When he came down twenty years later, the sign had a picture of George Washington, the first president of the United States... The most striking thing about the story of Rip Van Winkle is not merely that Rip slept twenty years, but that he slept through a revolution...

"There can be no gainsaying of the fact that a great revolution is taking place in the world today. In a sense it is a triple revolution: that is a technological revolution, with the impact of automation and cybernation; then there is a revolution in weaponry, with the emergence of atomic and nuclear weapons of warfare. Then there is a human rights revolution, with the freedom explosion that is taking place all over the world. Yes, we do live in a period where changes are taking place and there is still the voice crying through the vista of time saying, 'Behold, I make all things new, former things are passed by'...

"God grant that we will be participants in this newness and this magnificent development. If we will but do it, we will bring about a new day of justice and brotherhood and peace. And that day the morning stars will sing together and the sons of God will shout for joy. God bless you."


- Rev Martin Luther King Jr., sermon delivered on Passion Sunday (Mar. 31, 1968) at the National Cathedral in Washington, DC (from: The Essential Writings and Speeches of Martin Luther King Jr., pp. 268-69, 278).


Martin Luther King's last Sunday sermon, from which I have quoted key passages, is in a sense anchored in the turbulence of 1968. King speaks passionately against the war in Vietnam. His call for civil rights continues the migration into the sphere of economic rights which marked his last years, and which cost King much support among traditional liberals. I remember 1968, and this sermon. I remember feeling that King was slipping away from the powerful message that had led him on a climb to greatness. And yet there was something very powerful about this sermon, with its majestic evocation of Revelation 21:5, the downright Hegelian recounting of Washington Irving's most famous tale and its citations of the Elizabethan metaphysical poet and divine John Donne.

On Saturday, I visited King's grave site in Atlanta and what came to mind was not King's famous speech on the Washington Mall, but this one. Is it really so closely tied to America of 1968, I wondered? Does it not speak to us, like the voice of John on Patmos, across the ages? The images King wields are strong and they speak as well to America today as they did in 1968. Once more, we find our country at war, with leadership asserting a greater measure of power than the Constitution allots it. Once more, the people are filled with doubt about a foreign misadventure. Then, at King's urging, the gap between rich and poor was closing, the middle class was nearing the apogee of its historical importance. Now, the gap between the truly wealthy and all the rest is growing at a staggering pace. Indeed, as the Government doles out tax benefits, they benefit the truly wealthy, not the poor or middle class.

And who is this man who is sleeping through a revolution? I am afraid it's America which has grown so detached from the world, which has failed to play its proper role - the role that George Washington played for his world, that of a moral and political beacon. It's Bush and his team who are sleeping through this revolution. They are engaged, but not in any sense that shows they are alert to the forces of history; they have placed too much confidence in the force of arms - more than any military man would. They have shown no loyalty to the values on their lips. They are sleepwalkers. And that is a tragedy for us and the world.

But Dr King's core message here is one Americans need to hear: it is the imperative of being engaged with the world, and upholding our deepest values in the process - resisting the impulses to isolationism which inevitably follow foreign policy reversals. We should all take time to remember today that America's military misadventure in Indochina produced a region that has been the world's most tenacious outpost for Communism. On the other hand, the example of Martin Luther King had profound consequences not only for America, but for the world. Nelson Mandela and Desmond Tutu tell us that the peaceful transformation of South Africa could not have occurred but for the precedent that Dr King provided. Vaclav Havel, Andrei Sakharov and other leaders in the struggle for democracy in the ruins of Communist Eurasia have all cited King and his message as vital inspirations. The truth is simple: Martin Luther King - the example of his life - did far more to bring an end to Communist oppression than all the bombs rained from B-52's on North Vietnam. I say this not to detract from the legacy of Ronald Reagan, his masterful handling of the dynamics of Soviet Communism's end phase, nor the importance of a strong military as a means of insuring peace and stability, but rather I cite it as proof of the vitality of the American idea, of which King must now be counted a prime expositor, in the world today.

This example, the commitment to justice and peaceful change, the commitment to true democracy, has always been America's greatest weapon in the struggle against tyrannical adversaries. This week, our president takes another page from the tragedy of the Vietnam War. This day, as we remember Martin Luther King Jr., we will all do well to question the wisdom of Bush's policies. We should question the unwise faith reposed in military might alone. But we should remember our commitment to our nation's values, and we should not pause for an instant in our advocacy of those values. Neither must we forget the obligation we have to those in Iraq who have been placed in harm's way as a result of our Government's decisions. Truly there is a revolution afoot in the world today, but properly viewed it is not something for Americans to fear. Americans have ever been the revolutionaries, equipped with the tools to profoundly influence the world for the better. Those tools are ideas, a way of life and the best educational institutions on our planet. We only need to use them, but to do so with a measure of humility. In all of this Martin Luther King Jr. is a powerful example.

Let us be mindful of King's final prayer "God grant that we will be participants in this newness and this magnificent development. If we will but do it, we will bring about a new day of justice and brotherhood and peace. And that day the morning stars will sing together and the sons of God will shout for joy." Amen.

Stimson's Attack on the Gitmo Lawyers

David Luban

No one ever accused Bush administration officials of lacking a heavy hand.

Now comes before you Mr. Cully Stimson, deputy assistant secretary of defense for detainee affairs. In an interview with conservative radio broadcasters on a local A.M. station, Mr. Stimson remarks that an interesting, breaking story is the list of blue-chip law firms representing Guantanamo detainees – a list that he says was unearthed by a FOIA request (although, as Stimson knows quite well, the information was never a secret). (The audio is here. Scroll down to Guantanamo Bay: Five Years Later.) Stimson finds it “shocking, really” that prominent law firms would do any such thing. As he rattles off the list of law firms, it becomes clear that he has it on paper in front of him: it’s too lengthy to come off the top of his head. Asked who is paying the law firms, Stimson magnanimously admits that some of these lawyers are working pro bono, but then he hints darkly that others may have nefarious, secret funding sources. Enemies within! More terrorist lawfare!

He adds, “I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. It will be fun to watch that play out.”

A couple of days after Stimson’s interview, Robert Pollock, in a Wall Street Journal op-ed, echoed the idea that corporate clients should be or would be pressuring their law firms to drop the Gitmo detainees.

The response was predictable, and gratifying. The ABA’s president, and defense-bar spokesman Neal Sonnett leaped to the law firms’ defense, as did Senator Leahy. After outraged editorials in both the New York Times and the Washington Post publicized Stimson’s obscurely-situated interview, the Defense Department disavowed his remarks in strong terms, and made all the right noises about how important it is for the legal process to have excellent counsel for detainees.

How’s that again? For five years, the government (not least Defense) has fought in every way possible to avoid access to legal process for the detainees, a campaign that culminated in the habeas-stripping provisions in the Military Commissions Act. Why would they want excellent representation for the detainees, given that they don’t want the detainees ever to find a forum to be represented in? The hypocrisy boggles the mind. I assume that what bothered Defense about Stimson’s remarks is not their content but their candor.

Let’s be clear, however, that what Stimson recommends is nothing unusual. On the contrary, it’s business as usual for conservative activists, who for years have used the strategy of trying to defund lawyers on the left. I analyzed this strategy four years ago in Taking Out the Adversary: The Assault on Progressive Public-Interest Lawyers, 91 Calif. L. Rev. 209 (2003), and a shorter version of my argument appeared here in Legal Affairs.

The prime example, of course, is the decades-long attack on the Legal Services Corporation. The Reagan Administration tried unsuccessfully to zero the LSC out of the federal budget. They failed, but in 1996 the Republican Revolution Congress succeeded in partially neutering LSC with burdensome and unfair restrictions on LSC-funded lawyers. (One of these restrictions, forbidding legal services lawyers from making legal arguments against welfare “reform,” was subsequently found unconstitutional (Legal Services Corp. v. Velazquez, 531 U.S. 533 (2001)) – an important precedent when it comes to detainee issues, because it suggests that Military Commissions Act provisions forbidding detainees from making Geneva Convention arguments should likewise be found unconstitutional.)

But the attack on LSC is by no means the only effort by the right to win fights by making it hard for opponents to get a lawyer. For years, conservative public-interest firms attacked IOLTA programs, which fund legal aid lawyers through interest on client trust accounts that can’t be returned to the clients. They gave up only after the Supreme Court shot them down in 2003 in Brown v. Legal Foundation of Washington, 538 U.S. 216. Then there were attacks on law school clinics, like the successful lobbying campaign by Louisiana business interests and conservative groups to get the Louisiana Supreme Court to forbid law-student practice by Tulane’s environmental law clinic. And let’s not forget the shameful Supreme Court decisions Evans v. Jeff D. (475 U.S. 717 (1986)) and Buckhannon (532 U.S. 598), which allow targets of civil-rights suits to string cases along for years, and then grant relief to plaintiffs at the last minute while denying statutory attorney’s fees to their lawyers. Jeff D. "sacrifice offers" - sure, we'll give you what you want, but only if you agree that your lawyers don't get paid - provide a powerful tool for starving funds out of public interest law firms.

Stimson’s suggestion that businesses muscle their law firms into dropping detainee clients is also a time-tested tactic. Lawyers use the term “business conflicts” to describe representations they avoid because they would antagonize their bread-and-butter clients, and it’s long been recognized that business conflicts are a major obstacle to pro bono work. (In a New Yorker cartoon, one lawyer reminds another that the only thing that makes pro bono possible is all the anti-bono they do.) Sometimes, firms argue that bar rules make it unethical to take on a “positional” conflict of interest – a more antiseptic term than “business conflict” – but in the case of mere business conflicts, that is untrue. It’s an excuse lawyers offer for caving in to client pressure. Genuine positional conflicts of interest arise when a position a law firm is taking on one issue will damage another client on an unrelated issue – but merely annoying a client isn’t a positional conflict, and the ABA’s Model Rules of Professional Conduct make it clear that lawyers have absolute freedom to do public interest work even if it angers their paying clients.

Business conflicts are a powerful way that big corporations can discipline their lawyers into toeing the line in their extracurricular activities. I recall a few years ago when I participated in an academic conference on punitive damages. The conference program had speakers on all sides of the issue – until the morning the conference was scheduled to begin. Suddenly, all the pro-business, anti-punitive-damages speakers pulled out, almost simultaneously. It seems that a powerful insurance-company general counsel decided that it would be a tactical error to legitimize the conference by participating in it, because several speakers on the other side were presenting solid data that punitive damages cause no discernible damage to the U.S. economy or legal system. She phoned major business clients of the pro-business lawyers who were scheduled to speak at the conference, and they ordered their lawyer-speakers to bail out. Only one refused to do so. Client muscle is real.

Of course, the lawyers who dropped out were on the same side as their clients on the issue of punitive damages. Matters might be different if clients try to muscle lawyers into dropping their detainee clients: the law-firm lawyers representing them are proud of the work they're doing, and lots of lawyers find their pro bono work a personally necessary counterweight, even a professional redemption, to the anti-bono that pays the bills.

The fact that the Pentagon disowned Stimson’s fatuous interview doesn’t mean big businesses won’t take up his invitation, although it’s a bit hard to see why business clients would care enough to oppose good representation for Guantanamo detainees. Hopefully, business clients of major law firms will be smart enough to realize that if they do pressure the firms to drop detainee clients, the story is bound to leak. But let’s not forget that even if DoD’s disavowal of Stimson is the end of that story, it is by no means the end of the bigger story: winning cases by taking out your adversary’s lawyer remains business as usual.

Saturday, January 13, 2007

Two types of constitutional crises

Sandy Levinson

As 738 days remain in the Bush presidency, I offer the following analysis of two distinct types of constitutional crises. The first might be described as actions that run counter to the Constitution, so that the "crisis" is defiance of presumptive constitutional imits. We have obviously had a lot of discussion of whether Bush's NSA policies and the like represent this kind of crisis. (One can obviously discuss a great deal of other presidential actions of more admired presidents in the same vein, the most prominent example obviously being Abrham Lincoln.)

But I want to insist that we can label as a genuine "constitutional crisis" the problems posed by the existing Constitution, at least in certain contexts. To adopt Justice Powell's language from a different context, we might view this "Type 2" crisis as occurring "because" of the Constitution, not "in spite of" the Constitution, as is the case with a Type 1 crisis.

What's an example of a Type 2 crisis? Let me suggest, because I'd be surprised if anyone would seriously disagree, is the consequences in 1860 and, only a bit less seriously in 1932, of the long hiatus between the repudiation of a sitting president (who thereby becomes a discredited lameduck) and the inauguration of the successor. This means that we in effect had no politically legitimate government during the Secession Winter of 1860; the same was effectively true, with regard to crafting international economic policy, between November 1932-March 1933. Most of the time the extended transition is of no great import (though i still believe it is a serious defect in our political system). But, every now and then, it can generate a genuine crisis.

So I believe that we can legitimtaely speak in our own time--i.e., this very day--of a deepening Type 2 constitutional crisis created by an increasingly politically illegitimate president who nonetheless retains his constitutional power to engage in all sorts of dandgerous policymaking. One can argue, of course, that it would be a Type 1 constitutional crisis if Bush ordered an attack on Iran, since one might well believe that he has no authority to do so in the absence of congressional authorization--and it is Humpty-Dumptyish to argue that the AUMF was a permanent delegation of warmaking power, anywhere and everywhere, to the President. But much of what Bush wishes to do is not unconstitutional, but simply, according not only to hotheads like myself but people like Republican Senator Chuck Hagel, potentially disastrous. To be sure, it is not the case that the Constitution leaves us without legal recourse. Even in the absence of a no-confidence procedure that would terminate Bush's presidency, Congress has the legal power to cut off funding. The problem, though, is that the Constitution itself makes such action extremely difficult, if not impossible, beginning with the presumptive ability of Senate Republicans to filibuster such a bill (I put to one side debates about the constitutionality of the filibuster) and extending to Bush's ability to veto any cut-off legislation. Of course, if Congress simply fails to pass a bill funding the armed forces at all, that would presumably do it, but aside from the fact that no sane person advocates such legislation, I think it's fair to say that such a "strike" by Congress, with regard to its responsibilities to provide for "the common defense" would itself count as a full-fledged Type 2 constitutional crisis.

Consider another example of a Type 2 constitutional crisis. Assume that, for whatever reason, George Bush leaves the presidency. Obviously, Dick Cheney would become President; that's just what the Constitution provides in the case of a vacancy. But wouldn't that itself be a crisis, inasmuch as an overwhelming percentage of the population (with good reason, I would suggest) regards him as basically demented? So then let's assume Cheney has a heart attack. The successor, under the Succession in Office Act, would be Speaker of the House Nancy Pelosi. Putting to one side well-justified arguments that the SOA is unconstitutional, this succession would itself be a type-2 crisis inasmuch as it would provide that the opposition party takes over the White House without an intervening election. Some of you might wish to direct sneers at Speaker Pelosi herself; I do not, though I will readily say that I believe that there is nothing in the skills needed to become Speaker of the House, which are very real, that prepares one to be Commander-in-Chief during time of war.

Other examples might be offered of Type 2 ("because of") crisises. I suggest a number of them in my book (which, just so there is no doubt, I of course wish that everyone who logs on to Balkinization would buy and read--why else does anyone write a book than a desire that it be read by as many people as possible?).

Much of this posting is obviously "partisan" inasmuch as it continues my relentless attack on George W. Bush, and I certainly don't expect unanimous agreement with all of my specific examples. (Some of you may relish the idea of a Chaney presidency, after all.) But I respectfully suggest that the analtyic distinction between Type 1 and Type 2 constitutional crises is non-partisan. All it requires is recognition that we indeed have an imperfect Constitution that, on occasion, can be radically dysfunctional for We the People.

Friday, January 12, 2007

Constitutional Bets

Mark Graber

Suppose two tribes who have some reason to cooperate but whose members do not like each other very much ratify a constitution that grants the northern half of their territory to Tribe A and the southern part to Tribe B. Each party is rather happy with the bargain. Each believes that, in the next hundred years, climate changes are likely to enhance the value of their land and make the other tribe’s land nearly uninhabitable. As a result of this constitutional bargain, members of both tribes are able to form an army that provides for the common defense and make mutually beneficial trade agreements with other nations.

After 100 years of no apparent changes, evidence conclusively indicates that Tribe A has won the constitutional bet. The soil on the northern half of the continent is becoming increasingly fertile, while the soil of the southern half of the continent (for natural reasons) is slowly killing the members of Tribe B. Conventional constitutional theory is likely to tell us little more than that members of Tribe B have no constitutional right to move south and, having lost their constitutional bet, they have a constitutional obligation to remain in the constitutional union. This seems to be to be a rather cribbed view of constitutional theory. Leaving behind questions of constitutional interpretation for a second, any sound constitutional analysis would begin by recognizing that the present generation of Tribe B is not likely to continue cooperating with the present generation of Tribe A under these circumstances. Rather, a fundamental principle of an empirically realistic constitutional theory ought to be that constitutional bargains survive only when interpreted, however creatively, in ways that create opportunities for mutually beneficial cooperation between members of the two tribes. Of course, members of Tribe A will have the luxury of knowing, as civil war wracks their country, that Tribe B was the party responsible for abandoning the constitution. Thus, however, is unlikely to reduce their casualities. One crucial constitutional point is that constitutional bets made by one generation are unlikely to be peacefully enforceable against the next. A second constitutional point may be that constitutional bets made by one generation should not be enforceable against the next when the result is a sharp imbalance in the benefits of constitutional cooperation, that constitutions are best interpreted in ways that enable all parties, by their subjective lights, to believe that they are better off continuing to cooperate than going at matters alone (or engaging in civil war).

I think Brad DeLong’s Semi-Daily Journal misses this point when, in a criticism of an argument made in my Dred Scott book, he declares:
But there is an alternative, a more conventional story: that at the original Constitutional Moment slaveholders were betting that their power would increase over time (hence the Constitution was worth ratifying even though
it did not include unneeded long-run explicit protections of slavery) and
those who wanted to preserve the possibility of future abolition were betting
that slaveholders' power would diminish over time hence the Constitution was
worth ratifying as long as it did include dangerous long-run explicit
protections of slavery). According to this more conventional story, the
abolitionists won their bet and the slaveholders lost theirs.
According to this more conventional story, there was nothing in
the Constitution that said that slaveholders got a "do over" if they lost their
bet.
A number of good friends have made similar points, that slaveholders made a bet about the American future and hence, had no cause for constitutional complaint when Abraham Lincoln was elected consistent with the rules agreed upon in 1787. I confess to be unconvinced. For reasons noted in the book, I think DeLong is mistaken when he insists that northerners ratified on the basis of their belief that slavery would diminish over time (while most hoped so, the best evidence indicates that concerns with slavery were not central for most northern proponents of ratification). But even conceding the point for argument’s sake, the more vital constitutional consideration is that as a political matter people are not going to pay off constitutional bets made by their ancestors when the payment requires a sacrifice of crucial interests with inadequate present payoffs. A good case can be made that decent persons would not have accommodated slavery in 1787 and that decent persons should not have accommodated slavery in 1857. Nevertheless, even if bets were made in 1787, the constitutional bargain was likely to continue only if the winner, in this case the free states, did not collect. The Constitution of the United States, a constitutional theory that extended beyond narrow constitutional interpretation would note, could survive only when all crucial parties believed that cooperative served their interests, as they presently defined their interests. To the extent constitutional theory demands that all constitutional bets be paid off in full, constitutional theory is likely to promote civil war. Perhaps a civil war was worth fighting in 1861 to free slaves. The best justification of military action, however, was that slavery is evil and not that the slave states welched on a bet made 70 years previously.

Rahm Emanuel on the Democrats' best strategy

Sandy Levinson

Today's Washington Post column by David Ignatius is based on an interview with Rahn Emanuel. It includes the following:

With House Speaker Nancy Pelosi, Emanuel plans to use Bush's Iraq speech to pose what amounts to a vote of "no confidence" in Bush's leadership -- framing the new strategy as a congressional motion and voting it up or down. Emanuel is certain that Bush's strategy will be voted down and that a sizable number of Republicans will join the Democrats in rejecting the military escalation. Rather than try to restrict funds for the troops (which he sees as a political blunder that would delight Republicans), Emanuel instead favors a proposal by Rep. John Murtha to set strict standards for readiness -- which would make it hard to finance the troop surge in Iraq without beefing up the military as a whole. The idea is to position the Democrats as friends of the military, even as they denounce Bush's Iraq policy....

The secret for the Democrats, says Emanuel, is to remain the party of reform and change. The country is angry, and it will only get more so as the problems in Iraq deepen. Don't look to Emanuel's Democrats for solutions on Iraq. It's Bush's war, and as it splinters the structure of GOP power, the Democrats are waiting to pick up the pieces.
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Query: On what precise basis will Mitch McConnell justify a filibuster against a non-binding resolution that is the equivalent of a vote of no confidence? And what will be the political consequences of what I think will be an unprecedented passage of such a vote? Obviously, in a parliamentary system, it would mean resignation and replacement.

Why Bush Is Our Most Catastrophic President

Sandy Levinson

I have been taken to task for describing George W. Bush as the most catastrophic president in our history. Part of the critique is that worse catastrophes have happened in other presidential administrations, including, say, the capture and burning of Washington by the British in the War of 1812 or the decimation of the Union army in the early days of the Civil War. One might include Pearl Harbor in this list. Mention has been made of the fact that the 3,000 American dead in Iraq, though of incalculable loss to the families of the deceased, is a quite small number compared to the losses in earlier battles and wars. And so on. So why do I remain convinced that he is indeed our most catastrophic president?

Part of the answer lies simply in the expanded domain for decisionmaking by modern presidents. Michael Lind, in a Washington Post symposium on who have been our worst presidents, educated me as to the truly dreadful nature of the Madison presidency. The War of 1812 was awful, perhaps even catastrophic, in every way. Had the British in fact reconquered the US (and not simply a part of northern Maine, which they gave back), then Madison would obviously have been the hands-down winner of worst and most catastrophic president. But, of course, the US pulled through, albeit ingloriously. So the consequences of Madison's incompetence were relatively minor. And there just wasn't much else that Madison, or any President, could do, for good or for ill. He signed the bill establishing the Second Bank and he vetoed an internal improvements bill. The very fact that most Americans know nothing at all about Madison's presidency suggests that, at the end of the day, it was simply of little significance, one way or the other. And that's true of most 19th century presidencies, because the national government just didn't do much. And if one castigates some of the presidents for their collaboration with slavery, then one can respond that they were simply following the terms of the initial Constitution, a convenant with Death and an agreement with Hell, though some were more eager to live up to that covenant and agreement than others. But no US president comes through with flying colors, including Lincoln, who emphasized in his First Inaugural that he had desire to challenge slavery where it already existed and, indeed, would support an amendment guaranteeing the legal integrity of slavery in perpetuity.


Yes, the losses at Bull Run and elsewhere were catastrophic, but I'm not sure that one can properly blame them on Abraham Lincoln, unless one wants to address the question of whether he should have adopted James Buchanan's policy of declaring secession illegal but, nonetheless, non-prevetable by the national government. We've talked about that earlier, and I actually think there's something to be said for Buchanan's argument. As I've argued earlier, I think main justification for Lincoln's decision to join in going to war--it takes two to tango, after all--is along "humanitarian intervention" grounds emphasizing the necessity of eliminating chattel slavery, but this justification, as I've also argued earlier, calls into question the weakness of the ensuing "reconstruction" that utterly failed to achieve genuine "regime change" and permanently harmed American politics by giving the South even more political power in the long run than it had had prior to the War. So maybe Andrew Johnson is our most "catastrophic President" for his failure to crack down early and hard on the defeated Southern entities.

Incidentally, perhaps James Polk deserves mention, since it was his decision to initiate the Mexican-American War. Still, it's hard to argue that gaining the American Southwest, including California, has disserved the country (in the way that a weak Reconstruction clearly disserved the country, however understandable it is politically).

Perhaps it should be Woodrow Wilson, the most racist president in our history (relative to the cultural possibilities of the time, since, after all Teddy Roosevelt had had Booker Washington to the White House as a guest) and the implementer of America's debatable participation in World War I and then the various catastrophies linked with Versailles afterward. He was also a stunningly obdurate, self-righteous political leader, in part because of his assurance that he had been called by God to exercise his particular leadership. (Sound familiar?)

Harding scarcely counts. Corruption does not equal catastrophe. Hoover was the victim of structural forces as much as his own ineptitude. Indeed, had he accepted FDR's entreaties in 1920 to run for the presidency on the Democratic ticket (and been elected), I suspect we would regard him as a first-rate president, since he was a man of enormous ability (unlike you know who).

Some people might describe FDR as a catastrophe because of the New Deal. I don't. If anyone wants to take up the argument, feel free.

So now we're up to Truman, Ike and JFK. All were far from perfect, but catastrophic seems excessive, even for their detractors. JFK comes closest, because of his monumental ineptitude at the Vienna conference with Khruschev, which persuaded the latter that he was a weakling. Thus the Cuban Missile Crisis, where JFK risked nuclear holocaust in part so that the Democratics could avoid decimation in the 1962 congressional elections. (There might have been other considerations, but no less that Robert McNamara downplayed the genuine threat to the US posed by the missiles in Cuba.)

LBJ is the most tragic president in our history. For me he was the greatest domestic president we ever had, including Lincoln and FDR. Then there is Vietnam, which was, I think, an utter catastrophe. But, as I've argued earlier, it was a "soluble" catastrophe in the specific sense that acceptance of American defeat, as Gerald Ford was ultimately willing to do, had relatively little international effect. (Domestic politics are another matter.)

No one could argue that Carter was "catastrophic," so let's move on to Reagan. Again we could have all sorts of political arguments about the Reagan presidency, but it is true that, for all of his throwing down certain gauntlets, he was not bellicose or prone to take unnecessary risks. In retrospect, one feels almost nostalgic for the maturity of leadership of George Schultz in the State Department.

George H.W. Bush or Clinton? Highly imperfect, yes, "catastrophic," no. So this brings us, obviously, to George W. Bush. He embarked on a war of choice that has not only torn this country apart, but threatens to destabilize the entire Middle East and provoke ethnic bloodbaths, not to mention, for what it is worth, instabilities in the supply of oil and the like. He has, as Mark Graber has noted, turned a blind eye to global warming. He has, as Tom Friedman has repeatedly noted, been totally indifferent to achieving any real "energy independence" by adopting a more intelligent energy policy. He has threatened our children and grandchildren with economic insecurity by having to pay for his combination of reckless tax cuts and an expanding welfare state (such as the drug bill with its enormous benefits to big drug companies). The list goes on. In any event, I challenge anyone on this list to specify why another of our 43 presidents can legitimately be called "more catastrophic" or "worse" in terms of long-term consequences for the US and the world than George W. Bush, who, because of our defective Constitution, has 740 days remaining in his term.

Thursday, January 11, 2007

(Darryl) Levinson thesis revisited again, this time with application to Iraq

Sandy Levinson

I note with interest the following posting by John Podheretz, who I assume continues to be strongly Republican:
Want a little tough truth with your morning coffee? McCain can do this, and Rudy can do that, and Romney can do the other thing. But if tonight's speech doesn't herald the beginning of a serious turnaround in Iraq that is plain to see by spring of next year, the Risen Christ could be the Republican nominee in 2008 and He wouldn't be able to win against Al Sharpton.

Recall the Darryl (no relation) Levinson thesis and his emphasis on the priority of party over institutional identification. So the really terrible question is this: Is it really in the Democrats' institutional interest to save the country from what they believe is the catastrophe of Bush's escalation (especially if one believes, as I do, that one purpose of it is to inveigle Democrats into appearing responsible for "losing Iraq" should they have the temerity to stop it via a funding cutoff)? If Podheretz is correct, which I suspect he is, then isn't the Democrats' institutional interest the carrying out of a doomed-to-fail policy, which will have the consequences he predicts (i.e., not an Al Sharpton win, but, rather, a decisive victory for the Democratic nominee, whoever he or she turns out to be)? The implications for party-oriented Republicans are equally obvious. Not unless they have very strong (and, I believe, competely unmerited) faith in Bush's instincts as Commander-in-Chief do they have an interest in seeing this policy go ahead, but they may fear the consequences of White House retaliation should they become equally prominent with, say, Ted Kennedy as critics of the War. What is interesting, of course, is that two likely candidates, Chuck Hagel of Nebraska and Sam Brownback of Kansas, are indeed taking the lead, presumably because they perceive their only hope, in 2008, is a demonstrated record of standing up to the unpopular and incompetent President, even if he is one of their own.

One would like to think, of course, that decisions about Iraq are being made independent of party advantage, but, then, one would like to believe in Santa Claus. Bill Kristol torpedoed the Clinton health measures by stating that any collaboration in resolving the health insurance problem would in fact redound to Clinton and the Democrats, so that adamant opposition was the right strategy for Republicans. They opposed, and, of course, they took over Congress. So what should a Bill Kristol of the left be advising right now with regard to giving Bush the rope to hang himself as against standing up courageously in opposition to the escalation and asking John Kerry's question from 30 years ago, about what to tell the parents, wife, husband, child etc. of the last person to die for a dreadful mistake?

Bicycle Riding in January

Mark Graber

Monday and Tuesday were the first days in over a month that I wore gloves when taking my bicycle ride on the Rock Creek Trail outside of Washington, D.C. The daily temperature for the previous 30 days was above average for this time of year. On many days, I did not bother with a sweater. More than once, a t-shirt was sufficient.

I do a good deal of my academic thinking on my bicycle rides (which the comments below will no doubt suggest, probably explains a great deal). Often my mind wanders to Iraq. I was opposed to the original Iraqi invasion, suspecting that overthrowing Hussein was likely to be fairly easy but creating a stable polity (if not a stable democracy) next to impossible. On the other hand, the invasion was supported by the Washington Post, initially the New York Times, and some people whose judgment I think usually quite sound. They failed to persuade me (not that they needed to), but given their beliefs, the initial invasion seems best described as a mistake rather than incompetent. There is a revisionist school of thought, led by the Washington Post, which claims that Iraq could have been pacified had only President Bush adopted a more competent policy once the initial invasion succeeded. On my bicycle ride, I am inclined to think this mistaken. Destabilized Middle East countries, what little I know of comparative politics suggests, are next to impossible to put back together. That was my initial judgment of the Iraqi invasion and one that seems confirmed on a daily basis. For this reason, my suspicion is that President Bush’s present plan is no more incompetent than any other plan, all of which are as likely to succeed as any other effort to put Humpty Dumpty back together again. If we were to fire this bum as incompetent, the next bum, Democratic or Republican, in my pessimistic judgment, is likely to do no better. At least, I have yet to see any consensus among any experts I respect on a plan that is likely to result in a stable Iraq that is not a haven for Al-Quida.

Matters seem different on my bicycle ride when I think about how the winters in this area seem to grow milder by the year. A consensus does exist among experts that global warming is real and likely to have catastrophic consequences in the relatively near future unless something is done. Of course, dissenters exist on the details and a few on general themes. Still, if the best measure of incompetence is divergence from expert consensus, Bush administration environmental policies seem far more incompetent than Bush administration Iraqi policies. We have a looming environmental disaster, general agreement exists as to what must be done to prevent that disaster, and this administration does little more than censor scientific reports critical of industry.

As is the case for the initial Iraqi invasion, however, blame is hardly limited to the Bush administration. Global warming does not seem even to be on the agenda of the Democratic Congress. "An Inconvenient Truth" does well at the box office, but has hardly created a mass political movement for environmental reform. Higher gas prices bring out contrary voters, whether the cause is the Iraqi invasion or taxes intended to limit pollution. If as President Bush informed us after 9/11, the major American sacrifice during the war on terrorism would be to continue our normal consumer habits, this does not bode well for calls asking Americans to rethink behaviors responsible for pollution. My sense of the universe is that if 99 experts say an environmental disaster is coming and one legitimate expert says this may not be the case, the general public either believes the solo expert or at least concludes that the matter would benefit from more study. In this case, incompetent public policy is substantially rooted in a too apathetic general public.

My good friend and mentor Sandy Levinson would have us agonize over the possibility that an incompetent president has 740 days yet to reign. I worry more that the next President of the United States will be chosen by the same electorate that twice preferred a candidate who was widely known to be disinterested in the details of public policy. Impeaching Bush for incompetence is a bit like impeaching Clinton for philandering. What intelligent person thought they were voting for a master of policy or a devoted monogamist. "I may not know what I am doing," Bush informed the American people, "but I will stay the course." He has kept the promise on which he won the 2004 presidential election. Is there any reason to think that the Bush presidency has taught the American voter a lesson or is the likelihood greater that American voters will repeat their same mistakes in the future? Does American environmental policy teach us that we are unlikely to consistently elect more competent presidents unless we have a more competent public? 740 days left until a different kind of incompetent takes office.

Our adolescent President

Sandy Levinson

Today's New York Times includes the lead story by David Sanger on Bush's speech, which includes the following paragraph:

[Bush] put [the logic of his plan] far more bluntly when leaders of Congress visited the White House earlier on Wednesday. “I said to Maliki this has to work or you’re out,” the president told the Congressional leaders, according to two officials who were in the room. Pressed on why he thought this strategy would succeed where previous efforts had failed, Mr. Bush shot back: “Because it has to.”


Two comments: 1) What exactly does it mean to say "I said to Maliki this has to work our you're out." I thought that the US considered Iraq a "sovereign" state--recall the justification for handing over Saddam Hussein to the Shi'ite government. So how, precisely, can the US assure that Maliki is "out." Is the Iraqi government a wind-up toy after all, whose energy from the last winding-up is running down and thus in need of another American wind-up? 2) Even more to the point, does "Because it has to" count as an answer to the question? Isn't this exactly the response one would might expect from, say, a semi-delusional adolescent when asked why he believes that some particular act will enable him to attain a goal, say a date with the homecoming queen? Perhaps John Hinckley might have given that answer if a friend had asked why he thought shooting Ronald Reagan would be an effective way to Jodie Foster's heart. Yes, I know this is a cheap shot, but the point is deadly serious: We have a criminally incompetent President (alas, this is only a metaphor rather than an evocation of the "high crime and misdemeanor" standard requisite for impeachment) who is literally incapable to giving a cogent response to the most important question currently before the American people (and the world): I.e., why would any rational person believe that the new escalation will be successful? The only reason we take this egregious man seriously is because the Constitution makes it impossible to replace him with someone capable of carrying on an adult conversation. Lots of people are about to die because of the mistaken decision of the Framers not to make "maladministration" an impeachable offense and our supine belief that whatever the Framers decided serves as well (or "well enough") today.

Thanks to the Constitution, we have to endure 740 more days of George Bush as Commander-in-Chief.

Have a good day.

Go Big or Go Home

JB

If President Bush is convinced that leaving Iraq, even in stages, would be disastrous for American interests, he should stick to his plans. He should pay attention to popular sentiments only to the extent that lack of popular support limits what a commander-in-chief can do in wartime. Presidents are elected to act in the national interest as best they see it. Indeed, if Bush agreed to withdraw American forces because of popular opposition when he honestly believed that doing so would lead to terrible consequences for American interests, he would be betraying his oath of office.

The problem with last night's speech is that few people believe that Bush's proposed remedy of 20,000 additional troops will do any good. The limited nature of the remedy leads people to think that Bush is not entirely serious or that he is once again hiding something: that he is trying to punt the problem to his successor without admitting-- either to us or to himself-- that he has already lost the war.

Several commentators have suggested that the proposed surge is a last-ditch effort, a sort of Hail Mary pass. But it is a pretty strange sort of Hail Mary pass: Bush is on his own 10 yard line with seconds to play and he is throwing not a long bomb but a short toss to the sideline.

That is why (pardon the pun) people are so up in arms about what the President proposes to do. When Bush claims that we are at risk of seriously injuring American interests if we leave, fewer and fewer people believe him. They well know that withdrawal will harm our interests, but they have calculated the relative costs and benefits for themselves and decided that we should cut our losses. Bush's half measures-- given the paltry number of troops, they are not even half measures-- seem to confirm their assessments.

If Bush announced that a very significant escalation (and significant sacrifice to increase the army) was necessary-- say a doubling of our armed forces in Iraq, he would actually gain more support among the population, because more people would believe that their cost-benefit calculations were wrong and that we truly were at a crisis point. He would be signaling that losing this war would be every bit as serious for America as he claims it is, and that we had to give the battle everything we have as a nation. After all, if America's most vital interests are genuinely threatened, we are a country of 300 million people with vast resources; there is far more we could do, even if it would take many months to build up our forces. If this war cannot be lost, then we should be prepared to surrender far more blood and treasure to ensure victory.

Bush has become the victim of his previous incompetence and his history of inflated rhetoric. He has been so wrong so often before-- about weapons of mass destruction, about how to prepare for the war, about how to prepare for the occupation, about the costs of the war and the occupation, about the progress of events-- that his claims today are far less credible. He has repeatedly misstated reality-- if not lied-- and engaged in wishful thinking over and over again where this war is concerned, so why should people start believing his assessments and his predictions now? He has repeatedly stressed that if we do not win in Iraq, terrible things will happen to us. But he has not been willing to ask the country to sacrifice in proportion to the threat he says we face. He has been sending a mixed message, particularly in the remedy he proposed last night. All this adds to the suspicion that instead of resoluteness we are seeing more duplicity and more bad judgment.

Like many Americans, I believe that it is time to cut our losses, and stage a gradual withdrawal of forces. This war was a mistake from its inception, and the costs (and dangers) to the nation have only increased because of the Administration's incompetence in executing its plans. I recognize that I may be wrong in my assessments of the relative costs and benefits of ending the war. Perhaps President Bush, with access to far greater information, correctly sees something that the rest of us do not see about what will happen if we leave. If we are truly at risk of a terrible disaster, then Bush should not back down, no matter how much the public disagrees with him. But then he should act as if we truly faced such a disaster. He has yet to do so, four years into this war, and *that* is the great failure of his leadership.


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